Magna Carta Lawyers

22/12/2018

02/12/2017

HOW CAN I WIN AN ASSAULT CASE?

Being charged with assault is a serious matter.
Depending on the severity of the alleged offence you could find yourself facing a large fine, or even long-term imprisonment.

Even if your assault charge is relatively minor, you could still find yourself with a lifelong criminal conviction if you are found guilty, which can affect your ability to find work and travel overseas.

If you are facing assault charges, it is essential that you find an experienced criminal lawyer who has a strong track record of successfully defending assault cases.

Whether or not you win your assault case will largely depend on the strength of your defence, so make sure you give yourself the best possible chance.

Common defences to assault charges

If your question is how can I win an assault case?

The answer is there are a number of potential defences to assault charges.

The main ones are self-defence, duress, lawful correction and necessity, but there are certain other factors that the judge or magistrate will take into consideration when deciding whether or not to convict you.

Self-defence

Self-defence is a commonly used defence in assault charges.

Self-defence doesn’t just cover protecting your person against harm from someone else, it can also mean protecting someone else, or protecting your personal property against unlawful deprivation by another person.

It can also cover protection against criminal trespass.

If you believe that the alleged assault was committed through taking reasonable measures to defend yourself or your property and state this in court, it is up to the prosecution to prove beyond a reasonable doubt that this wasn’t the case.

Duress

Duress is used as a defence against assault charges in circumstances where you committed an act of assault because another person forced you to.

For duress to be successful as a defence, you need to have genuinely believed that your health or life was at risk, and your response needs to be considered reasonable to the circumstances and to what a reasonable person would believe.

Necessity

Necessity is where an act of assault was committed as a reasonable response to an emergency situation. In order for necessity to be considered a valid defence, there needs to have been a sudden or unexpected circumstance or emergency, and your response needs to be considered reasonable under the circumstances and to be the only way to deal with the situation.

Lawful correction

Lawful correction is applicable in circumstances where the assault charges relate to a parent and child, or a teacher and student.

If the actions of the parent or teacher are considered reasonable under the circumstances, excessive force wasn’t used and the reprimand wasn’t given to the face, lawful correction can be an effective defence.

Deciding on the defence for an assault charge is best done in consultation with an experienced lawyer.

In some cases, if you have a strong defence, your lawyer can write to the prosecution outlining your defence and request to have the charges against you withdrawn.

If the matter proceeds to a criminal hearing, your lawyer can help present your defence in court and give you the best chance of winning your assault case.

Courtesy: NSW Pocket Lawyer

10/04/2017

IS IT LEGAL TO FILM PEOPLE WITH A SMART PHONE?

In today’s digital world, pretty much everyone has a smart phone with filming capability.

Recordings can also be made available for public viewing on the internet within seconds.

But is it legal to film people with a smart phone?

The answer depends on where the filming takes place, the circumstances, and for what purpose.

If you see someone or something that interests you in a public space, it is generally legal to film it using your smart phone.

You do not need consent from that person, or any council. A public space is an area that is open and accessible to everyone, like a park, playing field, the footpath or a public beach.

It is important to note though that you can find yourself in legal trouble if you are filming in an offensive manner in a public space.

For example, taking pictures of people in their bathing suits at the beach.

The film must also only be used for a personal purpose.
If you intend to publish it on the internet for a commercial purpose, then even though it is legal to record, it is illegal to publish it unless permission is obtained from the subject and any landowner (including council).

Commercial uses include anything that is used to sell goods or services. It does not have to be related to profit or income, a commercial purpose can also include adding to or creating a business reputation.

You can also use your smart phone to film a police officer without their consent, as long as the filming is not hindering them from doing their job.

Such footage often captures behaviour by police that is worthy of criticism.

If you are on private property, it is only legal to film using your smart phone if the owner permits. They can ask you to stop filming and evict you.

If you don’t comply, you can be liable for trespass.

Your actions could even amount to assault if the owner of the property feels in any way threatened or intimidated by your non-compliance.

Now, if you have been removed from their property and the incident taking place is still visible from a public space, such as a footpath, technically you can take out your smart phone and film it from that space regardless of their consent.

However, this behaviour can be seen as stalking or harassment, and you may still get a tap on the shoulder by police.

It’s important to be aware that filming also generally captures audio.

So if what you are filming on that private property (even if you are filming it from a public space) is a private conversation between two people, it is illegal to record the discussion without their consent (s11 Surveillance Devices Act 2007 (NSW).

This area of law is complex though, because you can capture a conversation on film to the extent that it can be heard in public.
If the people involved in the conversation don’t want it to be heard, they ought to talk quietly or discuss the matter behind closed doors.

If the behaviour of the people was to such an extent as to suggest they were having a private conversation, however, then prying into that and filming it is illegal.

Using your smart phone to film someone acting in a private manner can be a criminal offence, punishable by a jail term, unless you have the subject’s permission.

This is regardless of whether the film is for personal or commercial use.

In NSW, it is a criminal offence to film a person’s private parts, or to film a person engaged in a private act such as un******ng, showering or s*x, without the person’s knowledge and consent.

Using your smartphone to film any form of indecent act involving a child can be considered child abuse material, or an aggravated act of indecency.

Such acts are entirely prohibited – consent is irrelevant.
It can also be against the law to publish any footage of someone engaged in a private act online, or send it someone else.

In summary, when you take out your smart phone to film, first consider if you are in a private or public space.

If private – generally that requires permission. If public, then think about the purpose of the recording.

Personal use doesn’t always require consent, but anything that is intended to be used commercially does.

Courtesy: NSW Pocket Lawyer

21/07/2016

THE EFFECT OF A CRIMINAL CONVICTION ON YOUR TRAVEL PLANS

If you wish to travel or emigrate abroad you may find that your criminal record restricts your entry to certain countries. Each country will have its own entry criteria and if you are thinking about moving or travelling to a country, you should check the entry criteria with the relevant embassy and find out whether it is necessary to provide any documentation.

United States of America

Generally, Australian residents are exempt from having to apply for a visa to enter the USA. However, if you have a criminal record, you will need to apply for a visa and must appear for an interview to determine whether or not you are eligible for a visa. You will need to provide details of the conviction and punishment. Whether or not the visa will be issued will depend on the nature and severity of the offence and punishment.

United Kingdom

You will need to apply for a visa. You will need to declare criminal convictions or traffic offences and provide details and documents of the convictions and punishment.

Canada

Anyone with a criminal record, including a drink-driving conviction, may be excluded from Canada. A waiver of exclusion may be issued. If you were convicted of or committed a criminal offence outside Canada, you may overcome the inadmissibility of entering Canada by applying for rehabilitation. Alternatively, you may be deemed rehabilitated if a certain period of time has passed since the offence.

11/07/2016

HUMAN RIGHTS LAWYER AMAL CLOONEY IN AUSTRALIA

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http://www.thegrowthfaculty.com.au/

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06/07/2016

YOUR RIGHTS AT THE POLICE STATION

If you are arrested and taken to a police station, it is important that you are aware of your rights.

Contrary to popular belief, the police are not just entitled to do whatever they want when they arrest a suspect.

There are strict codes of conduct that police officers are required to abide by, and if they breach the regulations it can lead to any charges made against you being dropped.

How does the arrest process work in NSW?

In NSW, police can arrest you if they suspect 'on reasonable grounds' that you have committed an offence.

They are not legally allowed to arrest you if they don’t have reasonable grounds to suspect that you have done something illegal, or if they just want to ask you questions about a crime that you weren’t directly involved in.

Once police arrest you, they will take you to the police station and question you.

At the end of this process, they will decide whether to charge you.

If they do charge you, you will remain in custody unless you are granted bail.

What should I do if I am arrested and taken to the police station?

If you have been arrested, you should contact a lawyer as soon as possible.

Avoid answering questions or making any statements to police until you have obtained legal advice.

If you give a rushed answer to questions, or you feel under pressure, you may inadvertently say something that is used against you later on.

Say as little as possible until you have spoken with your defence lawyer.

What are my rights at the police station?

You have a number of rights that you should be aware of in the event that you are arrested. Here are some of the most important things to know about what the police can and can’t do at the police station:

• You do not have to answer questions except in a few limited circumstances. You have the right to remain silent, and it is highly advisable that you don’t say anything until you have consulted a lawyer.

• Police can’t make you sign written statements or any other documents, and it is best to wait until you have spoken to a lawyer before you sign anything or make a statement. The only exception to this is signing your bail application if bail is granted.

• Police are only allowed to detain you for four hours before they have to either charge you with an offence, or let you go. If they want to question you further, they can apply to a magistrate or justice of the peace for permission to detain you for another four hours.

• If police refuse to give you bail, they are required to take you to the nearest court as soon as is practicably possible, so that you can apply to the magistrate for bail.

• Police are allowed to search you if they have reasonable grounds to believe that you are concealing a prohibited item, such as drugs, about your person.

If you have recently been arrested and taken to a police station for questioning and you believe that police acted inappropriately, or did not allow you the rights that you are legally entitled to, it is a good idea to speak to a lawyer as soon as possible.

In cases where the police acted inappropriately, your lawyer may be able to apply for any charges made against you to be withdrawn, and help you make an official complaint if necessary.

23/06/2016

• Admitted to the Supreme Court of New South Wales and High Court of Australia in 2005
• Public Notary
• Member of the Law Society of New South Wales
• Fellow of the Australian and New Zealand College of Notaries
• Member of the Society of Notaries of New South Wales Inc.